A man has been cleared of rape on appeal, after the injured party withdrew her complaint and a court ruled that no illegal arrest was involved, rendering the crime impossible to prosecute.

35-year-old Omar Pisani had been charged with a number of offences, including rape, illegal arrest, violent indecent assault and breaching court orders after a woman filed a police report saying that he had raped her in his car in April of 2012.

The woman had claimed that her husband had given her a lift to the Casino in Vittoriosa and dropped her off a short distance away because of traffic. As she was walking towards the Casino she heard Pisani’s car approaching and had hidden behind some parked cars. A short while later, Pisani had called her on her mobile phone from a private number. Thinking it was her daughter, whom she had just spoken to on the phone, she had answered.

The appellant had then seen her and walked up to chat. He was visibly drunk and was telling her that he wanted to have sex with her. She tried to dissuade him but eventually suggested that the two have a cigarette. After that he opened the car door and she got in. Although she said she was scared, she made no attempt to get out or summon assistance, not even when he stopped at a grocery store to buy wine.

When they arrived in an uninhabited area at Xghajra, she claimed the man had beat her and tied her up to have sex with her. She said she had let him do what he wanted and later drank some wine and had sex three more times with him before going to sleep. She filed a report four days later, after exchanging a number of text messages with the accused.

In June 2015, he was convicted and condemned to three years and five months in prison.

He had filed an immediate appeal. The crime of rape is normally prosecutable only if there is a criminal complaint by the injured party, but in cases involving illegal arrest, the police are allowed to prosecute of their own accord (ex officio). Pisani argued that the police were not allowed to prosecute him ex officio as there was no evidence of illegal arrest.

Pisani’s lawyer, Franco Debono, had argued that the first court should have abstained from ruling on the rape charge after the woman’s withdrawal of her criminal complaint. Debono also argued that the punishment was disproportionate, citing case law which demonstrated how people with previous convictions had been given second chances by the court simply for changing their ways.

The court of Appeal, presided by judge Antonio Mizzi, observed that the first court had failed to take into consideration the injured party’s forgiveness and withdrawal of her criminal complaint because of the illegal arrest, which rendered it prosecutable ex officio.

“This court has studied the acts of this case closely and from an examination of the witness testimony, especially that of the injured party, is not of the opinion that the woman was held against her will,” ruled the judge. To the contrary, he said that it appeared that when the woman had an opportunity to avoid him, she had failed to do so, saying it was “almost a situation where she wanted him to find her.”

“The parte civile did nothing to stop the accused from putting her in his car. Subsequently she had another opportunity to get out and leave...but there, too, she did nothing.”

But the judge said the court of first instance was correct in finding him guilty of offending public decency and morals in a public place. For this reason, the Court of Appeal confirmed that part of the judgment and cleared him of the other charges, reducing the punishment from 3 years and 5 months in jail to a 3-year Probation Order.

Court reporter Matthew Agius is a Legal Procurator and Commissioner for Oaths. Prior to re...